Complainant

Respondent

Parties

Michelle  Callinan Wynne

Inagh Development Limited Inagh Arc Childcare (Creche)

Complainant

Respondent

Anonymised Parties

Representatives

Glenn Cooper Dundon Callanan Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00048208-001

14/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act 1994

CA-00048208-003

14/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00048208-004

14/01/2022

The complainant submits that she was paid less than the amount due and did not receive annual leave, that she was penalized for giving notice of her intention to exercise her rights under her terms of employment, that she was treated less favourably because she was a part-time worker.

The complainant submitted that she submitted her complainant back in December 2021 and then had to resubmit the complainant and that she did not receive confirmation emails from the WRC regarding receipt of the complaints until January 2022.

The complainant submits she commenced employment on 05/09/2005 and her gross is €292.00 working 20 hours per week and that her hourly rate is €14.60.  She submits that the respondent paid her less than the amount due and did not pay her annual leave.  She submits that this totals €79,817.00 accrued since 2005 and that she signed a 2005 contract which referenced Year 1, Year 2 and Year 3 increments.  She said in 2007 her hourly rate of pay was reduced to €11.  She said that there is now on her file a 2012 contract but she never signed this contract.  There is a signature attached to this 2012 contract and this signature is her signature but she never signed it and she submitted this signature came from a signed service agreement.  She said she was asked to sign a new contract to avail of a 2020 increase that other staff got and that others were not asked to sign this contract and that she has been told to sign the contract to avail of the increase.  She found out in August 2021 that staff secured a pay increase of .70c per hour and she did not.  She submits that she is owed annual leave as she never gets annual leave as she works term time so is not working during the months of July and August and also does not work one week during the October mid-term and does not work two weeks at Christmas and does not work two weeks at Easter.  The complainant said that she works 42 weeks per year from September to the following June, as stated on her revenue job summary and 5 weeks of these 42 weeks per year she uses her annual leave allocation or takes time off in lieu or time off without pay to cover time during term time.  She submitted that she is not paid a wage for these five weeks or for the months of July or August each year.   She submitted that, therefore, as per the Year 3 increment detailed in her 2005 contract, she is owed monies.

The complainant said that on 12/10/2021 at 3.15pm she was asked to go into the office by Jackie Garland manager, and told she was getting her 3rd Year increment from her 2005 contract.  The complainant disputed this amount because it reflected the 70 cent pay increase received by other staff in August 2021 and not her increment, and Ms Garland manager said she would look at the calculations that had been made.  Then in 2021 the complainant said she was handed a further draft contract in the manager’s office and her rate was now increased to €16.50, using calculations of 38 weeks per year at 20 hours per week.   The complainant said she believed that any such increase must have been discussed by both the respondent and the manager before giving her a copy.   She said that from 29/01/2020 to 22/02/2022 a 2012 contract was never referenced at any meetings formal or informal or referred to in any other communication and that every time a contract was referenced it made reference to the 2005 contract only.  The complainant submits that a photocopy must have been taken of the 2005 service agreement contract which the complainant submits she brought to the office and, a copy was also taken of a page that was attached to the complainant’s 2005 service agreement which included her signature, and the signature of former manager Ms A’s signature was included. The complainant submits that she had not been aware of this contract’s existence until 2022. The complainant submitted that if this signed 2012 existed why was it not brought to her attention or why was she not shown a hard copy before this time, when she had been very open in discussions and the complainant had said that she was seeking both legal advice and consultations with a number of agencies.  The complainant submitted that not once was this 2012 contract referenced when she was offered three new contracts and that this hard copy 2012 contract was not available in her personal file when information was requested in writing in 2016 and only the 2005 contract was ever referenced.

The complainant submitted and agreed that all employees received a pay increase in January 2020. She said it was unfair to state that she was unhappy with the increase at this time, as her looking for pay owed or rate of pay per hour from 2005 3rd year increment has nothing to do with this increase or the amount. She said that the manager Ms Garland made a phone call in her office when Ms Garland sought advice to verify that the complainant’s 2005 contract was the complainant’s legal binding contract and that the complainant had not received her year 1, 2 or year 3 increment since 2005.  The complainant said that both her and the respondent had signed this 2005 contract agreeing to bide by its terms but the respondent had not honoured this.

The complainant submitted that with regards to the August 2021 pay increase, she was told about this by staff members not management/employer, and she requested both verbally and in writing on many occasions, as to why she was not considered for this increase, as an employee she had the right to question why she was excluded, and ask if it was reflecting her work performance, attendance, punctuality etc. To the present date she submitted she still has not received in writing the reasons why she was not considered for this increase at this time despite written requests.

In response to the submission regarding the cognisable period the complainant submitted that if her claim of €16.50 per hour is wrong why did the respondent offer this amount in a contract on 19/10/2021 and submitted that the calculation of salary per annum is accurate as already stated. The complainant said that the contract dated 2012 was never in her files and she never had a hard copy of it until given by Jackie in February 2022 She said it is untrue to state that she was paid €11.00 per hour from 2008 to 2020 without complaint, as she and other staff had approached management collectively and individually over the years regarding pay increases.

The complainant’s evidence was that she was told her hourly rate was €14.60 in 2021 when others got an increase and in 2007, she was told she was on €11 hour.  She said she accepted she signed a 2005 contract which referred to 3 increments.  She denied signing a 2012 contract.  The complainant said it was not true that she was offered €16.50, she was offered her 3rd increment and there was no 2012 contract on file at that time.  She said she should have been given reasons and did not get reasons.  With regards to agreement with Mr O’Connor in 2007, she said there was no written document made of it and no amended contract and no evidence of that meeting that is alleged to have taken place.

Under cross examination the complainant said she started with the respondent in 2004 and signed a contract in 2005.  She said after the deduction in 2007 she thought she would have her wages increased again and thought it would go back to €12.  It was her understanding that her contract would be reviewed but confirmed that she was not specifically told it would be increased.  She said she got a 30c increase in January 2020 and her core hours were 5 days/20 hours and she worked 3 days per week.  She confirmed that she takes 2 weeks holidays at Christmas and 1 week at Easter and 1 Week at Halloween.  She confirmed that the signature on the 2012 contract was her signature but said she did not sign that contract and said that it must have been copied from another document as she did not put her name to that contract. 

She said she signed a service agreement page but not as part of a 2012 contract and that she was told that it may have been copied and attached to it.  She said that when she signed her name to a document it was not signing her name to a contract and that somebody may have copied it and attached it to this 2012 contract.  She said that the company had never mentioned to her a 2012 contract and they had always referenced a 2005 contract and nobody ever mentioned a 2012 contract as it did not exist as she did not sign one.  She said that she met with Jackie Garland in 2020 about something else and talked about her 2005 contract and that it should stand and she was shown by Ms Garland a 2012 document which had no page attached. She said there was agreement with Jackie to increase her wages but as there was Covid payments, she did not notice the increase straightaway and she was happy with an increase.  Then in August 2021 staff got an increase and the complainant was told that because she was getting more than them, then she was capped.  She said that she received advice from a solicitor, from two other government agencies that her old contract of 2005 should stand.

The respondent submitted that it was their understanding that the complaints were received by the WRC on 14/01/2022 and therefore the cognisable period was six months before this time.

The respondent submitted that the complainant commenced employment in 2005 working mostly 20 hours per week and receives job seekers during summer months of July and August when there was no work.  Holidays over Christmas and Easter were paid as annual leave.  A new centre opened in 2007 and the rate of pay for room leaders was €11.00 per hour and as a grant had ceased the complainant agreed a rate of €11.00 per hour as room leader with Mr O’Connor.  In 2012 a new contract was issued which the complainant signed, and which made reference to €11.00 per hour hourly rate and she was paid this rate until 2020.  The complainant was upset by the increase offered to all staff of .30c per hour and alleged that the 2012 contract had been manufactured by a previous manager and that she did not sign that contract.  When she raised this issue, she requested a higher increase and did not request backpay.  To resolve the matter, she was orally offered an increase to €14.60 and accepted that orally from 03/04/2020.  When the company looked to document this increase the complainant refused to sign it.  The respondent continued to pay her the €14.60 hourly rate though.  In August 2021 the complainant raised the matter that other workers received an increase of .70c and their rate had been increased from €10.30 to €11.00 per hour.  The complainant was unhappy that others got a pay increase and that she did not get an increase despite her remaining on a higher rate of pay than the other workers.

It was submitted that the cognizable period is six months from submission of her complaint.  It was also submitted that she relies on a 2005 contract, but this was overridden by a 2012 contract and she only sought a change in 2020.  It was further submitted that even if the 2005 contract existed which was denied, then her calculations are incorrect as she only accounts for working 38 weeks.  It was submitted that the complainant receives her annual leave during Christmas, Easter and Halloween breaks.

The respondent submitted that the complainant signed a contract dated 06/09/2005.  By 2007 she was on the rate of €12 per hour and following a meeting with Mr O’Connor the complainant agreed a deduction to €11 per hour.  From 2007 until 2020 the complainant continued to be on the rate of €11 per hour.  The respondent submitted that the complaint’s argument that her Year 3 salary of her 2005 contract should be divided by 38 weeks instead of 52 weeks is illogical as it is irrelevant that the complainant does not work during the summer holidays.  The respondent further submits that it makes more sense that her salary of €12,576.20 is divided by 52 giving a figure of €12.09 and nearer to the rate of €12 euro per hour that was agreed before the agreed reduction in 2007.  It was further set out that regardless of the 2005 contract, an agreement was reached in 2007 to reduce the hourly rate to €11 per hour and the complainant agreed to this.

In August 2020 in an attempt to resolve the matter the respondent agreed a rate of €14.60 and reduced her hours to 20 per week.  In 2021 staff received an increase and the complainant did not, and the complainant expressed her unhappiness and the complainant looked for pay at the rate of €16.50 and claims she is owed almost 80,000.  It was submitted that the complaint should fail because the 2005 contract gave an hourly rate of €12.09, the 2007 agreement stipulated €11.00 per hour, the 2012 contract set out €11.00 per hour and this is what the complainant was paid until 2020 without complaint.  It was submitted that even if the complainant had a complaint, she could only claim for 6 months before the claim was lodged.  It was also submitted that the complainant makes reference to annual leave, but no claim has been submitted under the Organisation of Working Time Act and any claim appears to be the same as that under the Payment of Wages Act.

The evidence of Mr Michael O’Connor was that he drafted the 2005 contract and the respondent had been awarded a grant so they had money and gave the complainant a contract with higher-than-normal rate of pay and it was based on a clerical officer wage and this contract in 2005 refers to Year 1 and Year2 and Year 3 increments.    He said it operated at the time similar to civil servant rate and that it was €12 per hour.  He said there was a change in funding and the complainant was successful as a room leader and the grant was pulled by the government authority and their staff grant was reduced and the complainant agreed to work a rate of €11 euro per hour.  He said that the complainant said she knew she could not continue on that higher rate and that he did not get involved after that.

Under cross examination he said it was an oversight that nothing was put in writing at the time.

Mr Garvey gave evidence and said he was director of the respondent and chairperson for about 25 years.  He said they did not have current contracts for everyone in 2012 and they had a meeting with employees and said they would be providing up to date contracts and they met individual employees and the complainant’s signature is there and everyone signed the contract.  Then in 2020 there is a pay increase and her rate increases to €14.60.

Under cross examination Mr Garvey confirmed that in 2005 a service agreement was drawn up with regards to the complainant’s employment and that it mentioned 3 increments and that page 1 of the service agreement was signed by him.  He said there was an agreement signed by the complainant and it said Year 1, year 2, Year 3 and he confirmed that the complainant has adhered to the contract.  He said it was his understanding that the contract was superseded by another contract in 2012.  He said he did not recall conversations with Ms A the former manager about hours discussed with senior management.  He said it was his understanding that the complainant signed the 2012 contract.  He confirmed that there was a data protection request and that a list of documents was issued and there was no reference to a 2012 contract in that list of documents provided to her.  He said he was aware of a meeting in 2020 with the complainant and Ms Garland and that she reported back on that conversation.  He believed there was reference to 2 contracts and he did not recall any mention that the 2005 contract was legally binding.  He confirmed that the respondent agreed to pay money to resolve the matter amicably and denied this was based on the 2005 contract.  He confirmed that it was investigated if the signature attached was correct and did not know why this was not brought to the complainant before 2022 and that the manager of the time was asked and she said the format was the same for everyone with regards to issuing contracts.

The evidence of Jackie Garland Manager was that she is Childcare manager since 2017 and that from 2019 there were no discussions with the complainant about pay apart from asking about time off in lieu arrangement.  Ms Garland said it appeared the complainant was happy until December 2019 and then the complainant came forward and she was asking about time off in lieu and then there was mention about new arrangements and then something happened in January 2020 and the complainant said she would not sign the contract.  Ms Garland said she told her she had the contract of 2012 and the complainant brought in a different contract and the witness said that Ms A must have put it on the personnel file.  The witness said that she would have to get both contracts and the meeting ended.  She said she was given advice about increasing the complainant’s pay and it was poor advice and she agreed €14.60, and the complainant wanted to reduce her break to 15 mins.  It was Ms Garland’s understanding that the complainant was happy with the resolution of €14.60 per hour until next pay rise in August 2021 when the others got a 70c increase and the complainant did not sign the next contract and there were various attempts to resolve the matter.

Under cross examination Ms Garland said that the complainant came into the office on 29/1/2020 to verify if the 2005 was a legal contract and there were no notes taken as it was a conversation.  She said that she made a call to HR for advice, and she did not think that she came back to the complainant to say that the 2005 contract was verified.  She said that she did not give the complainant the 2012 contract.  She said that she gave the complainant a contract 14/10/21 and 19/10/21 and one said €15.31 and the other €16.50 euro which was an error as maths is not her best and she had calculated it incorrectly.  She confirmed that the complainant said she had been told she was under no obligation to sign a contract and that the complainant said she was getting advice.  She said there were conversations with the complainant but did not recall exactly what was said and did not have the diary that might have recorded details of the conversations.  She said that the complainant was given a further draft contract and the complainant said she did not have to sign it.  The witness said that she did not always take notes.  She said she did not respond to the complainant’s emails from August 2020 till Feb 2022 as she told the complainant that she was already on a higher rate of pay than others.  She said that she responded verbally, and the board had not given Ms Garland a response to give to the complainant and she cannot recall exactly what was said.  The witness said she did not reference the 2005 or 2012 contract.  She confirmed that if the complainant did not sign the contract, then her wage would be cut.  She could not explain why the board did not include their signature and that the complainant continued to look for all pay slips.  She agreed that the complainant never told the witness that she was happy with matters.

The complainant submits that she is owed monies including for annual leave and the respondent submits that there are no monies properly payable.  It was not in dispute that there was a 2005 contract which referenced increments and that the complainant’s hourly rate of pay was reduced to €11 in 2007 and that the complainant’s hourly rate was increased to €14.60 from 03/04/2020 and that other employees received an increase in their rate of pay in August 2021.

Section (6) provides that where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

For a breach of the Act to occur, the wages must be properly payable within the cognisable period and although I note the complainant’s evidence that she submitted complaints to the WRC and said that she did not receive acknowledgement of same I am satisfied based on all the submissions that the complaint was received on 14/01/2022 and that the cognisable period is therefore 15/07/2021 – 14/01/2022. 

In Sullivan v Department of Education PW 2/1997 (reported at [1998] E.L.R. 217) the Employment Appeals Tribunal held that,

“if an employee does not receive what is properly payable to him or her from the outset then this can amount to a deduction within the meaning of the 1991 Act”.

The complainant’s evidence was that her 2005 contract is the only contract that applies to her employment and that she never signed a 2012 contract.  The 2005 contract references Year 1, Year 2 and Year 3 increments.  There was a significant amount of evidence given by the complainant with regard to her 2005 contract and her denial of her agreement to any 2012 contract.  I have reviewed the 2012 contract and note that there is a signature attached to that which the complainant confirms is her own signature but alleges that someone must have attached a signature to it.  I also note the complainant’s evidence regarding the reduction in her hourly rate to €11 in 2007 following the cessation of a grant.  It would appear from the evidence that the complainant agreed to this albeit as outlined by Mr O’Connor there was nothing put in writing and it was an oral agreement.  I am satisfied therefore that regardless of whether the complainant signed a 2012 contract, the complainant did agree in 2007 to an hourly rate of €11.  A pay increase was given in 2020 and albeit the respondent advised that they would withdraw this, they ultimately did not and the increase remained. The complainant in her evidence was unable to point towards any contractual agreement that provides for justification for the same increase as other employees and therefore having taken into consideration all the evidence and submissions I find this aspect of the complaint is unfounded.  The second part of the complainant’s claim is that there is annual leave owed to her.  Her evidence was that she is on job seekers in July and August and that she takes 5 weeks annual leave during Halloween, Christmas and Easter.  The respondent provided details of her annual leave allocated and therefore I find this aspect of the complainant’s claim must also fail.  I find therefore there are no monies properly payable to the complaint during the cognisable period and her complaint is not well founded.

The complainant submitted that she submitted her complainant back in December 2021 and then had to resubmit the complainant and that she did not receive confirmation emails from the WRC regarding receipt of the complaints until January 2022.

The complainant submitted that she was penalized or threatened for invoking or proposing to exercise her Terms of Employment (Information) Act 1994.  She said she should be on €16.50 and asked for pay increase in 2020 and did not ask for a pay increase before that.  She submitted that she provided details of an email received from her manager Jackie Garland dated 14 January 2022, which reads “salary was increased on 03-04-2020 on foot of a new contract, which you have yet to sign. Can you please sign and return the contract within 21 days or we will consider you have not accepted the offer and your salary will revert to the previous level of 11.00 per hour”.  She submitted that she believed this to be threatening.

The complainant submits she commenced employment on 05/09/2005 and her gross is €292.00 working 20 hours per week and that her hourly rate is €14.60.  She submits that the respondent paid her less than the amount due and did not pay her annual leave.  She submits that this totals €79,817.00 accrued since 2005 and that she signed a 2005 contract which referenced Year 1, Year 2 and Year 3 increments.  She said in 2007 her hourly rate of pay was reduced to €11.  She said that there is now on her file a 2012 contract but she never signed this contract.  There is a signature attached to this 2012 contract and this signature is her signature but she never signed it and she submitted this signature came from a signed service agreement.  She said she was asked to sign a new contract to avail of a 2020 increase that other staff got and that others were not asked to sign this contract and that she has been told to sign the contract to avail of the increase.  She found out in August 2021 that staff secured a pay increase of .70c per hour and she did not.  She submits that she is owed annual leave as she never gets annual leave as she works term time so is not working during the months of July and August and also does not work one week during the October mid-term and does not work two weeks at Christmas and does not work two weeks at Easter.  The complainant said that she works 42 weeks per year from September to the following June, as stated on her revenue job summary and 5 weeks of these 42 weeks per year she uses her annual leave allocation or takes time off in lieu or time off without pay to cover time during term time.  She submitted that she is not paid a wage for these five weeks or for the months of July or August each year.   She submitted that, therefore, as per the Year 3 increment detailed in her 2005 contract, she is owed monies.

The complainant said that on 12/10/2021 at 3.15pm she was asked to go into the office by Jackie Garland manager, and told she was getting her 3rd Year increment from her 2005 contract.  The complainant disputed this amount because it reflected the 70 cent pay increase received by other staff in August 2021 and not her increment, and Ms Garland manager said she would look at the calculations that had been made.  Then in 2021 the complainant said she was handed a further draft contract in the manager’s office and her rate was now increased to €16.50, using calculations of 38 weeks per year at 20 hours per week.   The complainant said she believed that any such increase must have been discussed by both the respondent and the manager before giving her a copy.   She said that from 29/01/2020 to 22/02/2022 a 2012 contract was never referenced at any meetings formal or informal or referred to in any other communication and that every time a contract was referenced it made reference to the 2005 contract only.  The complainant submits that a photocopy must have been taken of the 2005 service agreement contract which the complainant submits she brought to the office and, a copy was also taken of a page that was attached to the complainant’s 2005 service agreement which included her signature, and the signature of former manager Ms A’s signature was included. The complainant submits that she had not been aware of this contract’s existence until 2022. The complainant submitted that if this signed 2012 existed why was it not brought to her attention or why was she not shown a hard copy before this time, when she had been very open in discussions and the complainant had said that she was seeking both legal advice and consultations with a number of agencies.  The complainant submitted that not once was this 2012 contract referenced when she was offered three new contracts and that this hard copy 2012 contract was not available in her personal file when information was requested in writing in 2016 and only the 2005 contract was ever referenced.

The complainant submitted and agreed that all employees received a pay increase in January 2020.   She said it was unfair to state that she was unhappy with the increase at this time, as her looking for pay owed or rate of pay per hour from 2005 3rd year increment has nothing to do with this increase or the amount. She said that the manager Ms Garland made a phone call in her office when Ms Garland sought advice to verify that the complainant’s 2005 contract was the complainant’s legal binding contract and that the complainant had not received her year 1, 2 or year 3 increment since 2005.  The complainant said that both her and the respondent had signed this 2005 contract agreeing to bide by its terms but the respondent had not honoured this.

The respondent submitted that it was their understanding that the complaints were received by the WRC on 14/01/2022.  It was submitted that the complainant had submitted no particulars of her complaint about penalization and it appears that this was not being pursued by the complainant.

The respondent submitted that the complainant commenced employment in 2005 working mostly 20 hours per week and receives job seekers during summer months of July and August when there was no work.  Holidays over Christmas and Easter were paid as annual leave.  A new centre opened in 2007 and the rate of pay for room leaders was €11.00 per hour and as a grant had ceased the complainant agreed a rate of €11.00 per hour as room leader with Mr O’Connor.  In 2012 a new contract was issued which the complainant signed, and which made reference to €11.00 per hour hourly rate and she was paid this rate until 2020.  The complainant was upset by the increase offered to all staff of .30c per hour and alleged that the 2012 contract had been manufactured by a previous manager and that she did not sign that contract.  When she raised this issue, she requested a higher increase and did not request backpay.  To resolve the matter, she was orally offered an increase to €14.60 and accepted that orally from 03/04/2020.  When the company looked to document this increase the complainant refused to sign it.  The respondent continued to pay her the €14.60 hourly rate though.  In August 2021 the complainant raised the matter that other workers received an increase of .70c and their rate had been increased from €10.30 to €11.00 per hour.  The complainant was unhappy that others got a pay increase and that she did not get an increase despite her remaining on a higher rate of pay than the other workers.

It was submitted that the cognizable period is six months from submission of her complaint.  It was also submitted that she relies on a 2005 contract, but this was overridden by a 2012 contract and she only sought a change in 2020.  It was further submitted that even if the 2005 contract existed which was denied, then her calculations are incorrect as she only accounts for working 38 weeks.  It was submitted that the complainant receives her annual leave during Christmas, Easter and Halloween breaks.

The respondent submitted that the complainant signed a contract dated 06/09/2005.  By 2007 she was on the rate of €12 per hour and following a meeting with Mr O’Connor the complainant agreed a deduction to €11 per hour.  From 2007 until 2020 the complainant continued to be on the rate of €11 per hour.  The respondent submitted that the complaint’s argument that her Year 3 salary of her 2005 contract should be divided by 38 weeks instead of 52 weeks is illogical as it is irrelevant that the complainant does not work during the summer holidays.  The respondent further submits that it makes more sense that her salary of €12,576.20 is divided by 52 giving a figure of €12.09 and nearer to the rate of €12 euro per hour that was agreed before the agreed reduction in 2007.  It was further set out that regardless of the 2005 contract, an agreement was reached in 2007 to reduce the hourly rate to €11 per hour and the complainant agreed to this.

In August 2020 in an attempt to resolve the matter the respondent agreed a rate of €14.60 and reduced her hours to 20 per week.  In 2021 staff received an increase and the complainant did not, and the complainant expressed her unhappiness and the complainant looked for pay at the rate of €16.50 and claims she is owed almost 80,000.  It was submitted that the complaint should fail because the 2005 contract gave an hourly rate of €12.09, the 2007 agreement stipulated €11.00 per hour, the 2012 contract set out €11.00 per hour and this is what the complainant was paid until 2020 without complaint.  It was submitted that even if the complainant had a complaint, she could only claim for 6 months before the claim was lodged.  It was also submitted that the complainant makes reference to annual leave, but no claim has been submitted under the Organisation of Working Time Act and any claim appears to be the same as that under the Payment of Wages Act.

The evidence of Mr Michael O’Connor was that he drafted the 2005 contract and the respondent had been awarded a grant so they had money and gave the complainant a contract with higher-than-normal rate of pay and it was based on a clerical officer wage and this contract in 2005 refers to Year 1 and Year2 and Year 3 increments.    He said it operated at the time similar to civil servant rate and that it was €12 per hour.  He said there was a change in funding and the complainant was successful as a room leader and the grant was pulled by the government authority and their staff grant was reduced and the complainant agreed to work a rate of €11 euro per hour.  He said that the complainant said she knew she could not continue on that higher rate and that he did not get involved after that.

Under cross examination he said it was an oversight that nothing was put in writing at the time.

Mr Garvey gave evidence and said he was director of the respondent and chairperson for about 25 years.  He said they did not have current contracts for everyone in 2012 and they had a meeting with employees and said they would be providing up to date contracts and they met individual employees and the complainant’s signature is there and everyone signed the contract.  Then in 2020 there is a pay increase and her rate increases to €14.60.

Under cross examination Mr Garvey confirmed that in 2005 a service agreement was drawn up with regards to the complainant’s employment and that it mentioned 3 increments and that page 1 of the service agreement was signed by him.  He said there was an agreement signed by the complainant and it said Year 1, year 2, Year 3 and he confirmed that the complainant has adhered to the contract.  He said it was his understanding that the contract was superseded by another contract in 2012.  He said he did not recall conversations with Ms A the former manager about hours discussed with senior management.  He said it was his understanding that the complainant signed the 2012 contract.  He confirmed that there was a data protection request and that a list of documents was issued and there was no reference to a 2012 contract in that list of documents provided to her.  He said he was aware of a meeting in 2020 with the complainant and Ms Garland and that she reported back on that conversation.  He believed there was reference to 2 contracts and he did not recall any mention that the 2005 contract was legally binding.  He confirmed that the respondent agreed to pay money to resolve the matter amicably and denied this was based on the 2005 contract.  He confirmed that it was investigated if the signature attached was correct and did not know why this was not brought to the complainant before 2022 and that the manager of the time was asked and she said the format was the same for everyone with regards to issuing contracts.

The evidence of Jackie Garland Manager was that she is Childcare manager since 2017 and that from 2019 there were no discussions with the complainant about pay apart from asking about time off in lieu arrangement.  Ms Garland said it appeared the complainant was happy until December 2019 and then the complainant came forward and she was asking about time off in lieu and then there was mention about new arrangements and then something happened in January 2020 and the complainant said she would not sign the contract.  Ms Garland said she told her she had the contract of 2012 and the complainant brought in a different contract and the witness said that Ms A must have put it on the personnel file.  The witness said that she would have to get both contracts and the meeting ended.  She said she was given advice about increasing the complainant’s pay and it was poor advice and she agreed €14.60, and the complainant wanted to reduce her break to 15 mins.  It was Ms Garland’s understanding that the complainant was happy with the resolution of €14.60 per hour until next pay rise in August 2021 when the others got a 70c increase and the complainant did not sign the next contract and there were various attempts to resolve the matter.

Under cross examination Ms Garland said that the complainant came into the office on 29/1/2020 to verify if the 2005 was a legal contract and there were no notes taken as it was a conversation.  She said that she made a call to HR for advice, and she did not think that she came back to the complainant to say that the 2005 contract was verified.  She said that she did not give the complainant the 2012 contract.  She said that she gave the complainant a contract 14/10/21 and 19/10/21 and one said €15.31 and the other €16.50 euro which was an error as maths is not her best and she had calculated it incorrectly.  She confirmed that the complainant said she had been told she was under no obligation to sign a contract and that the complainant said she was getting advice.  She said there were conversations with the complainant but did not recall exactly what was said and did not have the diary that might have recorded details of the conversations.  She said that the complainant was given a further draft contract and the complainant said she did not have to sign it.  The witness said that she did not always take notes.  She said she did not respond to the complainant’s emails from August 2020 till Feb 2022 as she told the complainant that she was already on a higher rate of pay than others.  She said that she responded verbally, and the board had not given Ms Garland a response to give to the complainant and she cannot recall exactly what was said.  The witness said she did not reference the 2005 or 2012 contract.  She confirmed that if the complainant did not sign the contract, then her wage would be cut.  She could not explain why the board did not include their signature and that the complainant continued to look for all pay slips.  She agreed that the complainant never told the witness that she was happy with matters.

The complainant submits that she was penalised or threatened with penalisation for invoking or proposing to exercise her Terms of Employment (Information) Act 1994.  She said she should be on €16.50 and asked for a pay increase in 2022.  The respondent submits that the complainant was not penalised and has failed to provide evidence to support her complaint.

Section 3 provides

(3) In proceedings under Part 4 of the Workplace Relations Act 2015 in relation to a complaint that subsection (1) has been contravened, it shall be presumed until the contrary is proved that the employee concerned has acted reasonably and in good faith in forming the opinion and making the communication concerned.

(4) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2015, relief may not be granted to the employee in respect of that penalisation both under this Act and under those Acts.

(5) In this section "penalisation" means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

I note the complainant’s evidence that she submitted complaints to the WRC and said that she did not receive acknowledgement of same and I am satisfied based on all the submissions that the complaint was received on 14/01/2022 and that the cognisable period is therefore 15/07/2021 – 14/01/2022. 

It was not in dispute that there was a 2005 contract which referenced increments and that the complainant’s hourly rate of pay was reduced to €11 in 2007 and that the complainant’s hourly rate was increased to €14.60 from 03/04/2020 and that other employees received an increase in their rate of pay in August 2021.  The complainant’s evidence was that a letter dated 14/01/22 outlined that if the complainant failed to sign a new contract following the increase, then her salary would revert to her rate of €11.  She did not sign the contract and her increase to €14.60 remained.  I note the complainant’s evidence that she found out through other staff members that they were getting further pay increases and she requested an increase both verbally and in writing and asked for an explanation and that up to the date of the hearing she still has not received in writing the reasons why she was not considered for this increase at this time despite written requests.   I also note Ms Garland’s evidence that she did not respond to the many requests from the complainant as she had already told the complainant that she was on a higher rate of pay than others. 

The Labour Court outlined in a case regarding penalisation under health and safety legislation that there is a requirement “to show a chain of causation between the impugned detriment and the protected act or omission” Óglaigh Náisiúnta na hÉireann v McCormack (HSD/115).  The Complainant must show that ‘but for’ having made a protected act under the subsection the detriment would not have happened.  It was unclear at times what were the particulars of this aspect of her complaint and it would appear that the complainant is alleging that but for invoking the terms of her contract she would have received a pay increase and that a failure to provide a pay increase amount to penalisation as it was a threat of reduction of pay.  I note that the complainant did not dispute that her rate of pay was higher than her colleagues.  While it was unclear at times whether the complainant was referring to her 2005 contract or the disputed 2012 contract or indeed the additional contract issued following her 2020 pay increase, and while noting that the respondent could have dealt with the matter in an more appropriate way, it remains the case that the complainant agreed to a pay reduction in 2007 and that she secured a pay increase in 2020.  Having heard all the evidence I find that the complainant was not penalised and that her complaint is not well founded.

The complainant submitted that she submitted her complainant back in December 2021 and then had to resubmit the complainant and that she did not receive confirmation emails from the WRC regarding receipt of the complaints until January 2022.

The complainant submitted that as a term time worker she was not offered the August 2021 pay increase or given any work-related reason why it was not discussed with her at this time and believes that her complaint is with foundation and should be considered at this time.

The respondent submitted that it was their understanding that the complaints were received by the WRC on 14/01/2022. It was submitted that the complainant had submitted no particulars of her complaint that she was treated less favourably than full time workers and it appears that this was not being pursued by the complainant and that the complainant was the best hourly paid worker.

The respondent submitted that the complainant commenced employment in 2005 working mostly 20 hours per week and receives job seekers during summer months of July and August when there was no work.  Holidays over Christmas and Easter were paid as annual leave.  A new centre opened in 2007 and the rate of pay for room leaders was €11.00 per hour and as a grant had ceased the complainant agreed a rate of €11.00 per hour as room leader with Mr O’Connor.  In 2012 a new contract was issued which the complainant signed, and which made reference to €11.00 per hour hourly rate and she was paid this rate until 2020.  The complainant was upset by the increase offered to all staff of .30c per hour and alleged that the 2012 contract had been manufactured by a previous manager and that she did not sign that contract.  When she raised this issue, she requested a higher increase and did not request backpay.  To resolve the matter, she was orally offered an increase to €14.60 and accepted that orally from 03/04/2020.  When the company looked to document this increase the complainant refused to sign it.  The respondent continued to pay her the €14.60 hourly rate though.  In August 2021 the complainant raised the matter that other workers received an increase of .70c and their rate had been increased from €10.30 to €11.00 per hour.  The complainant was unhappy that others got a pay increase and that she did not get an increase despite her remaining on a higher rate of pay than the other workers.

It was submitted that the cognizable period is six months from submission of her complaint.  It was also submitted that she relies on a 2005 contract, but this was overridden by a 2012 contract, and she only sought a change in 2020.  It was further submitted that even if the 2005 contract existed which was denied, then her calculations are incorrect as she only accounts for working 38 weeks.  It was submitted that the complainant receives her annual leave during Christmas, Easter and Halloween breaks.

The respondent submitted that the complainant signed a contract dated 06/09/2005.  By 2007 she was on the rate of €12 per hour and following a meeting with Mr O’Connor the complainant agreed a deduction to €11 per hour.  From 2007 until 2020 the complainant continued to be on the rate of €11 per hour.  The respondent submitted that the complaint’s argument that her Year 3 salary of her 2005 contract should be divided by 38 weeks instead of 52 weeks is illogical as it is irrelevant that the complainant does not work during the summer holidays.  The respondent further submits that it makes more sense that her salary of €12,576.20 is divided by 52 giving a figure of €12.09 and nearer to the rate of €12 euro per hour that was agreed before the agreed reduction in 2007.  It was further set out that regardless of the 2005 contract, an agreement was reached in 2007 to reduce the hourly rate to €11 per hour and the complainant agreed to this.

In August 2020 in an attempt to resolve the matter the respondent agreed a rate of €14.60 and reduced her hours to 20 per week.  In 2021 staff received an increase and the complainant did not, and the complainant expressed her unhappiness and the complainant looked for pay at the rate of €16.50 and claims she is owed almost 80,000.  It was submitted that the complaint should fail because the 2005 contract gave an hourly rate of €12.09, the 2007 agreement stipulated €11.00 per hour, the 2012 contract set out €11.00 per hour and this is what the complainant was paid until 2020 without complaint.  It was submitted that even if the complainant had a complaint, she could only claim for 6 months before the claim was lodged.  It was also submitted that the complainant makes reference to annual leave, but no claim has been submitted under the Organisation of Working Time Act and any claim appears to be the same as that under the Payment of Wages Act.

The evidence of Mr Michael O’Connor was that he drafted the 2005 contract and the respondent had been awarded a grant so they had money and gave the complainant a contract with higher-than-normal rate of pay and it was based on a clerical officer wage and this contract in 2005 refers to Year 1 and Year2 and Year 3 increments.    He said it operated at the time similar to civil servant rate and that it was €12 per hour.  He said there was a change in funding and the complainant was successful as a room leader and the grant was pulled by the government authority and their staff grant was reduced and the complainant agreed to work a rate of €11 euro per hour.  He said that the complainant said she knew she could not continue on that higher rate and that he did not get involved after that.

Under cross examination he said it was an oversight that nothing was put in writing at the time.

Mr Garvey gave evidence and said he was director of the respondent and chairperson for about 25 years.  He said they did not have current contracts for everyone in 2012 and they had a meeting with employees and said they would be providing up to date contracts and they met individual employees and the complainant’s signature is there and everyone signed the contract.  Then in 2020 there is a pay increase and her rate increases to €14.60.

Under cross examination Mr Garvey confirmed that in 2005 a service agreement was drawn up with regards to the complainant’s employment and that it mentioned 3 increments and that page 1 of the service agreement was signed by him.  He said there was an agreement signed by the complainant and it said Year 1, year 2, Year 3 and he confirmed that the complainant has adhered to the contract.  He said it was his understanding that the contract was superseded by another contract in 2012.  He said he did not recall conversations with Ms A the former manager about hours discussed with senior management.  He said it was his understanding that the complainant signed the 2012 contract.  He confirmed that there was a data protection request and that a list of documents was issued and there was no reference to a 2012 contract in that list of documents provided to her.  He said he was aware of a meeting in 2020 with the complainant and Ms Garland and that she reported back on that conversation.  He believed there was reference to 2 contracts and he did not recall any mention that the 2005 contract was legally binding.  He confirmed that the respondent agreed to pay money to resolve the matter amicably and denied this was based on the 2005 contract.  He confirmed that it was investigated if the signature attached was correct and did not know why this was not brought to the complainant before 2022 and that the manager of the time was asked and she said the format was the same for everyone with regards to issuing contracts.

The evidence of Jackie Garland Manager was that she is Childcare manager since 2017 and that from 2019 there were no discussions with the complainant about pay apart from asking about time off in lieu arrangement.  Ms Garland said it appeared the complainant was happy until December 2019 and then the complainant came forward and she was asking about time off in lieu and then there was mention about new arrangements and then something happened in January 2020 and the complainant said she would not sign the contract.  Ms Garland said she told her she had the contract of 2012 and the complainant brought in a different contract and the witness said that Ms A must have put it on the personnel file.  The witness said that she would have to get both contracts and the meeting ended.  She said she was given advice about increasing the complainant’s pay and it was poor advice and she agreed €14.60 and the complainant wanted to reduce her break to 15 mins.  It was Ms Garland’s understanding that the complainant was happy with the resolution of €14.60 per hour until next pay rise in August 2021 when the others got a 70c increase and the complainant did not sign the next contract and there were various attempts to resolve the matter.

Under cross examination Ms Garland said that the complainant came into the office on 29/1/2020 to verify if the 2005 was a legal contract and there were no notes taken as it was a conversation.  She said that she made a call to HR for advice, and she did not think that she came back to the complainant to say that the 2005 contract was verified.  She said that she did not give the complainant the 2012 contract.  She said that she gave the complainant a contract 14/10/21 and 19/10/21 and one said €15.31 and the other €16.50 euro which was an error as maths is not her best and she had calculated it incorrectly.  She confirmed that the complainant said she had been told she was under no obligation to sign a contract and that the complainant said she was getting advice.  She said there were conversations with the complainant but did not recall exactly what was said and did not have the diary that might have recorded details of the conversations.  She said that the complainant was given a further draft contract and the complainant said she did not have to sign it.  The witness said that she did not always take notes.  She said she did not respond to the complainant’s emails from August 2020 till Feb 2022 as she told the complainant that she was already on a higher rate of pay than others.  She said that she responded verbally, and the board had not given Ms Garland a response to give to the complainant and she cannot recall exactly what was said.  The witness said she did not reference the 2005 or 2012 contract.  She confirmed that if the complainant did not sign the contract, then her wage would be cut.  She could not explain why the board did not include their signature and that the complainant continued to look for all pay slips.  She agreed that the complainant never told the witness that she was happy with matters.

The complainant submits that as a part-time worker and a term time worker she was not offered the August 2021 pay increase or given any work-related reason why it was not discussed with her at this time.  The respondent submits that she did not get a pay increase on this occasion owing to her rate of pay and that she has the highest hourly rate.

Section 9(1) sets out that

“a part-time employee, shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.” 

I note the complainant’s evidence that she submitted complaints to the WRC and said that she did not receive acknowledgement of same and I am satisfied based on all the submissions that the complaint was received on 14/01/2022 and that the cognisable period is therefore 15/07/2021 – 14/01/2022. 

The complainant submitted that her comparators are full-time employees as they were given a pay increase and she was not.  However, I note that Ms Garland’s evidence was that the complainant was on a higher rate of pay than the complainant and the complainant did not dispute this.  It would appear therefore that that the apparent difference in treatment of the Complainant giving rise to the within proceedings did not arise from the Complainant’s part-time or term time status.  The complainant was not treated in a less favourable manner and therefor in all the circumstances and including the evidence and the submissions I find that the complaint is not well founded.

CA-00048208-001

I find there are no monies properly payable to the complaint during the cognisable period and her complaint is not well founded.

CA-00048208-003

I find that the complainant was not penalised and that her complaint is not well founded.

CA-00048208-004

I find that the complainant was not treated less favourably and her complaint is not well founded.

Part-time, penalisation, terms of employment, monies properly payable.